06 June 2025
Using Immigration Court as a Trap
Immigration and Customs Enforcement (ICE) has begun apprehending noncitizens at immigration court – where individuals appear to seek humanitarian relief or defend against deportation – immediately after the government moves to dismiss their case. Immigrants and their attorneys are increasingly reporting that ICE, in coordination with government lawyers, is detaining individuals as they exit court following such dismissals. Rather than providing a reprieve, dismissal is now being used to facilitate detention and potentially summary deportation, raising serious concerns about due process and adherence to governing statutes in the United States. Continue reading >>
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07 January 2025
How the EU Commission Backs up Pushbacks at the EU-Belarussian Border
In December 2024, the European Commission issued a communication to the European Parliament and the Council discussing the current situation of so-called ‘hybrid threats’ at the EU-Belarussian border. With the goal of stopping irregular arrivals of migrants and its facilitation by Belarus and Russia, the EU Commission outlines how EU primary law, namely Art. 72 TFEU, could be utilized by Member States to circumvent the Common European Asylum System (CEAS) and curtail the protection afforded by fundamental rights for migrants. By advising member states to make use of this legal pathway for the current situation at the EU-Belarussian border, the EU Commission indirectly justifies the current pushback practices from Poland, Lithuania and Latvia. Continue reading >>
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27 November 2024
Prioritising Member States Over Citizens
The classic story about the right to privacy and data protection in the EU is one of a high level of protection. Yet, this original rosy image is increasingly fading away, most visibly in the La Quadrature du Net litigation, which is a continuation of two dynamics. First, the Court is still cleaning up the residual mess that lingers on from the now annulled Data Retention Directive. Second, in so doing, it is incrementally allowing the Member States indiscriminately retain personal data. Hence, the Court is carving out space for Member States’ preferences to the detriment of the protection of the individual. Continue reading >>
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05 November 2024
Art. 21 DSA Has Come to Life
Art. 21 DSA is a new, unusual and interesting framework to settle disputes over online content moderation decisions. By now, the first four online dispute settlement bodies (ODS-bodies) have been certified, and most of them have already started taking cases. In this article, based on recent interviews with representatives from all certified bodies, I will explore how these very first ODS-bodies are set up and which very first experiences they have made. Continue reading >>03 November 2024
Of Artificial Intelligence and Fundamental Rights Charters
The Council of Europe has adopted the Framework Convention on Artificial Intelligence – the first of its kind. Notably, the Framework Convention includes provisions specifically tailored to enable the EU’s participation. At the same time, the EU has developed its own framework around AI. I argue that the EU should adopt the Framework Convention, making an essential first step toward integrating the protection of fundamental rights of the EU Charter. Ultimately, this should create a common constitutional language and bridge the EU and the Council of Europe to strengthen fundamental rights in Europe. Continue reading >>
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01 November 2024
Pouring New Wine into Old Wineskins
The three seemingly trivial observations that follow inform three substantive proposals regarding the protection of fundamental rights within the EU. To address the challenges faced by national constitutional courts and the CJEU, it is essential to leverage existing procedural tools within domestic legal systems. Additionally, expanding the applicability of these versatile tools and considering a structural revision of the judicial bodies may facilitate the creation of hybrid entities that could collaboratively address major issues, thereby steering constitutional developments in the EU. Continue reading >>
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30 October 2024
The EU Charter’s Odyssey
Since its inception, the Union has grown into a tremendously powerful political actor through ever-increasing legal harmonization. This development has significantly marginalized the role of national apex courts – the lighthouses of democracy. Moreover, the globally observed trajectory of authoritarian forces is shaking EU's roots and questioning the vision of a lasting European polity. To fend off all these challenges, the Union should be centred around the hard-won humanistic freedoms and common values defined in the Charter, serving as a basis for common identification and a canvas to project shared visions of a political entity. Continue reading >>
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24 May 2024
The East German Gap
Reflecting on guiding principles and content, history and practice. Continue reading >>
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15 December 2023
Escaping Jurisdictional Blackholes
There is a lack of effective judicial protection in the field of EU Common Foreign and Security Policy. In a recent opinion, AG Ćapeta has suggested that the solution rests with asserting the possibility of establishing the non-contractual liability of the EU for breach of fundamental rights in CFSP cases, regardless of whether the measure imposes restrictions. However, the Council also has a positive duty stemming from the Charter to include a jurisdictional clause in all CFSP measures indicating the national court which has jurisdiction in those cases. Continue reading >>
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11 December 2023
Third Time’s A Charm?
The second process to draft a new constitutional text in Chile ended on November 7. A referendum to be held on December 17 will decide upon the fate of the constitutional proposal that resulted from it. Polls indicate that the proposal will be rejected, even if the option in favor of the proposal has been gaining support lately. Irrespective of the outcome of the referendum, it might be fair to say that this second version of the constituent process has already failed. In particular, I argue that just like the first draft, the second proposal seeks to constitutionally entrench the goals of the political factions that held the majority within the drafting organ, instead of providing a constitutional framework that would allow for broad self-governance based on the democratic principle. Continue reading >>
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